NC Supreme Court sides with Judge Tillett in dispute with State Bar

Judges across North Carolina have been watching with intrigue a disciplinary case brought against a Dare County judge by the state organization that oversees lawyers.

Jerry Tillett, the senior resident Superior Court judge in Dare County, had already accepted a public reprimand from the state’s Judicial Standards Commission before the N.C. State Bar began to pursue a case against him.

The case is centered on a long-running dispute between Tillett, who has been in office since 1993, and the Kill Devil Hills Police Department, the district attorney and other officials in the Dare County town. In addition to highlighting what one disciplinary body called “a misuse of power,” the case brings clarity to which North Carolina organizations have the authority to discipline sitting judges.

In 2010, several days after Tillett’s adult son was approached and questioned by Kill Devil Hills police, the judge, the police chief and town officials met in the judge’s chambers.

The judge’s son had been detained by the police on April 4, 2010, according to the Judicial Standards Commission’s reprimand. Tillett’s son was not charged, and the reason for the stop has not been made public. Eleven days later, Tillett “expressed complaints about incidents of misconduct” involving the Kill Devil Hills department beyond the one with his son.

“The meeting became confrontational and Judge Tillett warned the Town that they needed to take care of these complaints,” according to the reprimand. “Judge Tillett exhibited a demeanor that was described by the other participants in the meeting as stern, aggressive, agitated, and angry, and several participants felt threatened by Judge Tillett’s conduct and by discussion of a superior court judge’s ability to remove officials from office.”

In the aftermath, Tillett began to hear from Kill Devil Hills officers with grievances against the police chief, the town manager and the district attorney. The judge then tried over the next two years to get the police chief and the district attorney removed from office, at one point even ordering personnel files be delivered to his office, according to records related to the case.

In March 2013, Tillett accepted a public reprimand from the Judicial Standards Commission, a 13-member organization that weighs complaints against judges accused of violating the N.C. Code of Judicial Conduct.

Tillett, in an attempt to bring his case to a quick end, acknowledged that his concern with the police and prosecutor could have been seen as coercive and retaliatory, and he accepted a public reprimand for misuse of power.

That reprimand, however, did not bring the matter to a close.

Bar complaint

Two years later, the State Bar, the organization tasked with overseeing lawyers in North Carolina, opened its own investigation against Tillett. The complaint was filed by Steven Michael, who in addition to being the Kill Devil Hills town attorney at the time also was a member of the Bar’s Disciplinary Hearing Commission, the panel which would hear the complaint against Tillett.

The State Bar case was based on the same allegations that led to the public reprimand, raising questions about whether the agency had overstepped its authority.

Tillett contended that the State Bar didn’t have the authority to pursue a case against him because disciplinary action against judges is reserved for the Judicial Standards Commission and the state Supreme Court under North Carolina law. The General Assembly can also impeach judges.

In a ruling released Dec. 22, the state Supreme Court agreed unanimously. Though some judges have been disciplined by the State Bar, it was for actions taken while not on the bench.

The disciplinary process envisioned by the State Bar would be like having the batter critique the umpire’s ball and strike calls, rather than letting the umpire call pitches as he sees them.

N.C. Supreme Court Chief Justice Mark Martin

“By initiating disciplinary proceedings against a sitting judge for conduct that the judge engaged in while on the bench, the State Bar is trying to circumvent both the constitution and the prescribed statutory procedure,” Chief Justice Mark Martin wrote in a separate but concurring opinion to highlight what he described “as the wisdom of the overall scheme that the General Assembly has prescribed.”

The process, Martin contends, protects judges from pernicious partisan attacks while still holding them accountable for misconduct.

“In sum, the comprehensive and well-designed scheme ... preserves judicial independence and avoids practical concerns that could result from a process involving a greater number of disciplinary bodies,” Martin wrote. “The disciplinary process envisioned by the State Bar would be like having the batter critique the umpire’s ball and strike calls, rather than letting the umpire call pitches as he sees them.”

Norman W. Shearin Jr., a Kitty Hawk lawyer who represented Tillett, said his client was gratified by the Supreme Court decision, noting the legal precedent.

“The legal principle that exclusive, original jurisdiction to discipline judges lies with the Supreme Court is now the law of North Carolina as the direct result of Judge Tillett’s successful defense of the State Bar proceeding against him,” Shearin said in a statement.

Katherine Jean, counsel with the State Bar, welcomed the decision, too, as one that brings clarity to a process that had been ambiguous. “The State Bar is pleased that the Supreme Court recognized its authority to discipline judges for conduct that occurred before they became judges and to discipline judges when the Judicial Standards Commission has removed them from the bench,” Jean said.